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Posts Tagged ‘Tennessee same-sex marriage’

Federal Judge Refuses to Stay Her Tennessee Marriage Recognition Order as New Marriage Equality Drama Plays Out in Oregon

Posted on: March 21st, 2014 by Art Leonard No Comments

In a gutsy move, U.S. District Judge Aleta A. Trauger has rejected a request by Tennessee Governor Bill Haslam to stay her order requiring the state to recognize the out-of-state same-sex marriages of three Tennessee couples while Haslam appeals to the U.S. Court of Appeals for the 6th Circuit. Trauger issued a short opinion explaining why on March 20.

Trauger had issued her order in Tanco v. Haslam on March 14, finding that the plaintiffs had shown that they were likely to succeed on the merits of their claim that the state’s refusal to recognize their marriages violates the 14th Amendment of the federal constitution. Without engaging in any extended constitutional analysis in this new opinion, Trauger pointed out that “(1) the post-Windsor courts have uniformly found that bans on the consummation and/or recognition of same-sex marriages are unconstitutional under rational basis review, (2) the court found the reasoning in those cases, particularly Bourke v. Beshear, to be persuasive, and (3) the court found no basis to conclude that Tennessee’s Anti-Recognition Laws would merit different treatment under the United States Constitution than the laws at issue in these other states.” Windsor is, of course, the U.S. Supreme Court’s ruling last June that Section 3 of the Defense of Marriage Act was unconstitutional, and Bourke v. Beshear is the recent ruling by U.S. District Judge John Heyburn holding that Kentucky could not refuse to recognize same-sex marriages contracted out of state. On the other hand, no circuit court of appeals has yet ruled on a marriage equality case since Windsor, although appeals are now pending in several circuits. However, she wrote, “given the unanimity of opinion as to this point in district courts across the country, the court finds no ‘serious question’ as to whether this court conducted an appropriate constitutional analysis in reaching essentially the same conclusion.”

More to the point, Trauger sharply disputed Haslam’s contention that staying the decision would not cause irreparable harm to the plaintiffs, and emphasized the narrow scope of her preliminary injunction, which orders the state to recognize only the same-sex marriages of the three plaintiff couples. Any harm to the state by complying with this order while the state’s appeal goes forward “would not be substantial,” she wrote, “and that harm is unlikely to occur in the first place, because the plaintiffs are likely to succeed.” She also wasn’t convinced by the argument that the “affront” to the “sovereignty” of Tennessee occasioned by compliance with her order would outweigh harm to the plaintiffs, especially the couple who are expecting a newborn child and the other couple who are raising two children together.

Judge Trauger took pains to distinguish this case from the other district court rulings, all of which are now being stayed pending appeal. All of those other cases, she observed, involved statewide relief. That is, if the marriage formation opinions went into effect, as happened briefly in Utah before the Supreme Court granted a stay, hundreds of couples might quickly flock to get married. By contrast, her preliminary injunction only affected three couples. Haslam has failed to show that anybody else would be injured by the enforcement of her Order, and she asserted that “preserving the status quo” pending appeal was not a good enough argument where constitutional rights of the plaintiffs were at stake.

Haslam had announced just a few days earlier that he was appealing the preliminary injunction to the 6th Circuit. That circuit court is already entertaining an appeal from Ohio in a marriage recognition case, and is about to receive an appeal in the Kentucky case, where Judge Heyburn bowed to the concerns of Governor Steve Beshear and stayed his marriage recognition ruling pending the appeal.

Meanwhile, a new same-sex marriage drama is playing out in Oregon, where Attorney General Ellen Rosenblum filed a brief on Tuesday (March 18) with U.S. District Judge Michael McShane, who is presiding over two consolidated same-sex marriage cases, Geiger v. Kitzhaber and Rummel v. Kitzhaber. Rosenblum’s brief for the state argues that the ban on same-sex marriage is unconstitutional, and asserts that the state is ready to start issuing marriage licenses if the court rules that way after hearing oral arguments on a motion for summary judgment by the plaintiffs on April 23. Neither Governor John Kitzhaber nor the other named defendants in that case have indicated any interest in appealing from such a ruling, and so far nobody has petitioned the court to intervene to defend the marriage ban since Rosenblum earlier announced that she would not defend it. The Oregonian, a local newspaper, reported on March 19 that some county clerks have discussed intervening as defendants, but so far nobody has taken that step. Intervention would require approval from Judge McShane, an openly gay man who was appointed to the court by President Barack Obama and confirmed by the Senate last May.

Judge McShane is faced with an interesting set of choices. He could rule promptly after the April 23 hearing, rendering a decision similar to the eight consecutive pro-same-sex marriage decisions issued by federal district courts in other states over the past few months, and make it effective immediately, which would make Oregon the nineteenth state with same-sex marriage if one can count Illinois as the eighteenth because Cook County Clerk David Orr has been issuing licenses under a federal court order and several other county clerks have followed suit. Or, he could rule on the merits for plaintiffs and issue an opinion, but stay his order pending the 9th Circuit’s ruling in the Nevada marriage equality case. This would allow him to make any adjustments necessary to reflect the 9th Circuit’s ruling to be in compliance with circuit precedent. If he wished to be even more cautious, he could hear arguments on April 23 and then wait until the 9th Circuit rules before finalizing his opinion and releasing it, so as to take account of whatever the 9th Circuit decides. The 9th Circuit had previously scheduled oral arguments in the Nevada case for April 9, but then cancelled the argument, reportedly based on a request by one of the assigned judges for more time to prepare. As the 9th Circuit has been deluged with amicus briefs on both sides of the question, such a request is understandable. The 9th Circuit has not as of now announced a rescheduled date, but one assumes it will be relatively soon, given the urgency of deciding this as more district court opinions pile up.

Victory Put on Hold, and More Holds Looming in Marriage Equality Struggle

Posted on: March 20th, 2014 by Art Leonard No Comments

The way to achieve marriage equality right away is to persuade a state legislature and governor or to secure a final order from the highest appellate court of a state holding that same-sex couples are entitled to marry. Last year we saw this scenario unfold in several states, including most spectacularly in Hawaii and Illinois and New Jersey and New Mexico.

The way to achieve marriage equality eventually, perhaps, is to win a ruling from a federal district court that a state’s ban on celebrating or recognizing same-sex marriages is unconstitutional. Since January 6, 2014, when the Supreme Court stayed the district court marriage equality decision in Utah, the marching orders for federal trial judges have been clear: Thou shalt stay thy ruling pending appeal. On February 12, U.S. District Judge John G. Heyburn II issued an Order requiring the state of Kentucky to recognize same-sex marriages contracted out of state. Kentucky’s attorney general took a few days deciding whether to file an appeal to the U.S. Court of Appeals for the 6th Circuit, and the court granted an interim stay through March 20 to give the attorney generalplenty of time to make up his mind and to allow state officials to take necessary steps preparatory to complying with the court’s Order. Shortly after the interim stay was granted, the attorney general announced that he would not appeal, and the governor announced that he would, subsequently hiring a law firm with money appropriated by the legislature. The governor’s attorney then moved for a stay pending a ruling on appeal by the 6th Circuit. On March 19, just before the interim stay would expire, Judge Heyburn granted the motion for stay pending appeal in Love v. Beshear, No. 3:13-CV-750-H, as the case is now titled.

In a short opinion explaining his action, Judge Heyburn first reviewed the four factors courts consider in deciding whether to stay injunctive relief while an appeal is pending, and concluded that they produce a “mixed” result. On the one hand, Judge Heyburn is clearly convinced that denying recognition of same-sex marriages is unconstitutional, but he concedes that the question has not yet been decided at the appellate level. After pointing out that “the applicant [for the stay] has not made a strong showing of a likelihood of success on the merits,” and that the district courts that have ruled so far have been unanimous, “the ultimate resolution of these issues is unknown.” Heyburn characterized as a “legitimate concern” the state’s argument that failing to stay could result in some harm to the state if an appellate reversal results in “potential granting and then taking away of same-sex marriage recognition to couples,” but he pointed out the well-established principle that any delay in protecting constitutional rights will cause irreparable harm. As to the public interest, “The Court has concerns about implementing an order which has dramatic effects and then having that order reversed, which is one possibility. Under such circumstances, rights once granted could be cast in doubt.”

Even though the court found the factors to be “mixed,” providing no clear answer whether a stay should be issued, ultimately the Supreme Court’s Utah stay was highly persuasive. In light of the fact that the 6th Circuit has not granted expedited argument in pending marriage equality cases, the judge noted, “there is no such guarantee of expedited briefing before the Sixth Circuit” and “it may be years before the appeals process is completed.” Furthermore, this case, involving recognition, is different from the Utah case, which involved the right to marry. “Nevertheless,” he wrote, “the Supreme Court has sent a strong message by its unusual intervention and order in that case. It cannot be easily ignored.” And this court is not going to ignore it. “It is best that these momentous changes occur upon full review,” concluded Heyburn, “rather than risk premature implementation or confusing changes. That does not serve anyone well.”

So, as every district court decision has been stayed except for the Ohio case (which is already pending on appeal in the 6th Circuit), federal district judges are uniformly interpreting the Supreme Court’s January 6 action on Utah to be a clear signal to federal judges to stay their decisions in marriage equality cases pending appeal, and this court was not willing to depart from that practice.

Building on this string of stays, Tennessee Governor Bill Haslam filed a motion on March 18 seeking a stay of District Judge Aleta Tauger’s order from March 14 in Tanco v. Haslam, holding that Tennessee must recognize the marriages of the three plaintiff same-sex couples. The big difference between the Tennessee case and the Kentucky case is that in Kentucky Judge Trauger limited her relief to the three couples who are plaintiffs in the case, whereas in the Utah and subsequent marriage equality cases in which stays have been granted, the cases were not so limited, seeking to vindicate marriage and recognition rights broadly on behalf of similarly-situated couples throughout those states. In a memo supporting the motion, Haslam argued that 6th Circuit precedents would support granting a stay so long as “there is at least a serious question going to the merits of Plaintiffs’ claims,” and further that the trial court had improperly placed a burden on the defendants to prove the constitutional validity of their marriage ban. As to irreparable injury, the applicant contended that no such injury would occur as a result of delay, contending in particular that plaintiffs Tanco and Jesty, expecting a child, could undertake various contractual arrangements that would protect Jesy’s parental status vis-à-vis the child, but this part of the argument is plain wrong, since no contractual or other paper arrangement can fully substitute for being recognized as a legal parent immediately upon birth of the child.

The motion, filed by Attorney General Robert E. Cooper, Jr. on March 18, ends by pointing out that Judge Trauger had explicitly stated that she was not ruling on whether Tennessee’s ban on same-sex marriage was unconstitutional, but merely finding that there was a valid constitutional question presented that plaintiffs were likely to win. Cooper was upfront about the intimations in Judge Trauger’s opinion that she was likely to find the state’s marriage ban unconstitutional, but, wrote Cooper, the state had announced it would appeal, so “It is only right for the status quo to be maintained during that process.” This argument has the plausible air of relying on a neutral, non-discriminatory legal principle as justification for delaying the right of same-sex couples to have their marriages recognized in Tennessee, but that analysis ignores a big part of the context, in which people may be suffering real injuries because of the failure of the government to recognie their marriage.

Tennessee Federal Judge Orders State to Recognize Three Same-Sex Marriages

Posted on: March 15th, 2014 by Art Leonard No Comments

U.S. District Judge Aleta A. Trauger signed an order in Tanco v. Haslam, 2014 U.S. Dist. LEXIS 33463, on March 14 directing the state of Tennessee to recognize the same-sex marriages of three couples while their lawsuit is being considered by the court. Granting a motion for preliminary relief filed by the couples’ attorneys, Abby Rubenfeld of Nashville and the National Center for Lesbian Rights, Judge Trauger concluded that it was likely that the plaintiffs will ultimately win their case, and that all factors courts analyze in determining whether to grant relief before a final decision on the merits weighed in their favor. Lead defendant Governor Bill Haslam expressed disappointment with the ruling. On Tuesday, March 18, and announced that a motion had been filed with Judge Trauger seeking a stay of her order pending appeal to the 6th Circuit, and asserting, incredibly, that delaying recognition of these marriages would cause no harm to the plaintiffs, according to an Associate Press report. This makes it sound like the Governor didn’t read Judge Trauger’s opinion (which seems likely), since she specifically found that delaying recognition would harm the plaintiffs, thus balancing the equities in their favor.

With her order, Judge Trauger became the eighth consecutive federal district judge to issue a ruling in favor of plaintiffs in a marriage equality case. Some, as in this case, narrowly focused on whether a state is obligated to recognize a same-sex marriage that was celebrated in another state. Others dealt more broadly with the question whether the state is obligated to allow same-sex couples to marry. In either case, the legal analysis is substantially the same, and Judge Trauger found both kinds of rulings to be persuasive.

This case was filed on October 21, originally on behalf of four same-sex couples, but the parties stipulated to drop one of the couples from the case, for reasons not explained in Judge Trauger’s opinion. The defendants, all sued in their official capacity, are Governor Bill Haslam, Commissioner Larry Martin of the Department of Finance and Administration, and Attorney General Robert Cooper.

The lead couple, Doctors Valeria Tanco and Sophy Jesty, met at Cornell University in Ithaca, New York, while studying veterinary medicine, and were married in New York before they moved to Tennessee, where the University of Tennessee’s College of Veterinary Medicine offered positions to both of them. Dr. Tanco became pregnant last summer, presenting the court with an important deadline to decide the motion for preliminary injunction, since recognition of the Tanco-Jesty marriage is important in terms of parental rights and recording parentage on the birth certificate, and she is due to give birth next week. Sergeant Ijpe DeKoe, an Army Reserve officer, is stationed in Memphis, where he lives with his husband, Thomas Kostura. They married in New York prior to Sgt. DeKoe’s deployment to Afghanistan in 2011, while DeKoe was stationed at Fort Dix in New Jersey. Johno Espejo and Matthew Mansell, adoptive fathers of two children, met and married in California. Mansell works for a law firm that moved the department in which he was employed to their Nashville office, and the Espejo-Mansell family relocated to Tennessee so Mansell could continue working for the firm. Espejo, who has been the stay-at-home father for their two sons, found part-time employment in Nashville. These couples are typical of the mobility of 21st century America, having moved to Tennessee because their employment prospects took them there. They share in common the concern that Tennessee’s non-recognition of their marriages will harm or inconvenience them in various ways, in addition to signaling disrespect for their relationships.

Judge Trauger explained that courts analyze four factors in deciding whether to grant preliminary relief: whether plaintiffs are likely to succeed on the merits, whether they are likely to suffer irreparable harm in the absence of preliminary relief, whether the balance of the equities tip in the plaintiffs’ favor, and whether issuing an injunction would be in the public interest. The most significant threshold question, of course, is whether plaintiffs are likely to win their case on the merits.

On this point, Judge Trauger was convinced by the unbroken streak of marriage equality rulings that federal judges have issued since last June’s Supreme Court decision in U.S. v. Windsor, striking down Section 3 of the Defense of Marriage Act, a statute that had forbidden the federal government from recognizing same-sex marriages. “These courts have uniformly rejected a narrow reading of Windsor, such as that advanced by the defendants here,” she wrote, “and have found that Windsor protects the rights of same-sex couples in various contexts, notwithstanding earlier Supreme Court and circuit court precedent that arguably suggested otherwise. These cases include decisions both inside and outside of this circuit, finding that similar state anti-recognition laws are or likely are unconstitutional, decisions granting a preliminary injunction under similar circumstances, and decisions finding that same-sex marriage bans are unconstitutional in the first place. In these thorough and well-reasoned cases, courts have found that same-sex marriage bans and/or non-recognition laws are unconstitutional because they violate the Equal Protection Clause and/or the Due Process Clause, even under ‘rational basis’ review, which is the least demanding form of constitutional review.”

The judge characterized the recent developments as a “rising tide of persuasive post-Windsor federal caselaw,” and said that “it is no leap to conclude that the plaintiffs here are likely to succeed in their challenge to Tennessee’s Anti-Recognition Laws.” She pointed out that all the arguments defendants raised in opposition had been “consistently rejected” by other courts, and she found particularly persuasive the ruling by Judge John G. Heyburn against the Kentucky non-recognition law. “The anti-recognition laws at issue here and in other cases are substantially similar and are subject to the same constitutional framework,” she wrote, explaining why she was not persuaded that Tennessee’s laws “will suffer a different fate” from the laws previously struck down in Kentucky, Ohio and Texas.

Federal courts recognize the deprivation of constitutional rights as an “irreparable harm,” so that factor was quickly disposed of. Since the state has no legitimate interest in enforcing an unconstitutional law, the equities clearly favor the plaintiffs, and, similarly, it is in the public interest to grant the injunction. Tennessee’s lawyers argued that granting the injunction would “override by judicial fiat the results of Tennessee’s valid democratic process,” pointing out that the anti-same-sex marriage constitutional amendment had won 80% of the vote when it was enacted in 2006, but that didn’t faze Judge Trauger. “Although the defendants are correct that issuing an injunction will temporarily stay the enforcement of democratically enacted laws,” she wrote, “that is essentially the case with any federal decision that overturns or stays enforcement of a state law that violates the federal Constitution,” and she pointed out that the 6th Circuit Court of Appeals, with appellate jurisdiction over this case, had stated in a past ruling that “it is always in the public interest to prevent a violation of a party’s constitutional rights.”

The judge took pains to emphasize the narrowness of her ruling, which merely temporarily enjoins enforcement of the anti-recognition law for the three couples who are plaintiffs in this case. “The court is not directly holding that Tennessee’s Anti-Recognition Law are necessarily unconstitutional or that Tennessee’s ban on the consummation of same-sex marriages within Tennessee is unconstitutional,” she wrote. When evaluating the four factors, she pointed out that granting preliminary relief in favor of three couples was no great imposition on the state, distinguishing this case from some others in which plaintiffs are suing on behalf of all those similarly situated and seeking state-wide relief. Of course, there is nothing to stop the plaintiffs in this case from filing a further motion to certify a plaintiff class of all those similarly situated, but that would be an issue for another day.

Judge Trauger was appointed to the federal bench by President Bill Clinton. Abby Rubenfeld, lead attorney for the plaintiffs, was the first legal director for Lambda Legal during the 1980s, and is Tennessee’s leading LGBT rights attorney. Other Tennessee lawyers representing the plaintiffs include the law firm of Sherrard & Roe, Maureen Holland, and Regina Lambert.

The judge’s penultimate paragraph intimated that she did not expect to make a ruling on the merits in this case before the 6th Circuit Court of Appeals, and perhaps even the Supreme Court, has ruled in one of the other pending cases. On March 31, Kentucky Governor Steve Beshear signed a contract with the Kentucky law firm of VanAntwerp, Monge, Jones, Edwards & McCann to represent him in appealing the Kentucky marriage recognition ruling to the 6th Circuit, after the state’s attorney general had declined to defend the non-recognition law on appeal. The state of Ohio is already appealing a marriage recognition ruling to the 6th Circuit. Appeals are even further along in the 4th and 10th Circuits, which have scheduled arguments in the Virginia, Utah and Oklahoma cases for this spring. The 9th Circuit had scheduled oral argument in the Nevada recognition case for April 9, but then announced that the hearing would be delayed to give the panel more time to review the numerous briefs that have been filed in the case. With all these appeals pending and arguments beginning soon, it is highly likely that the Supreme Court will be entertaining petitions to take up the issue of same-sex marriage during its 2014-15 Term.